Gall and Leslie
[2009] FMCAfam 591
•17 June 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| GALL & LESLIE | [2009] FMCAfam 591 |
| FAMILY LAW – Parenting – children aged twelve and two – where the parents lived together for limited periods during the children’s lives – where the children have always lived with their mother – where the father has had a long history of illegal drug use but has now ceased using illegal drugs – where for the past six months the father has spent time with the children each week supervised by his brother – where the parties agree that the father’s time should increase and become unsupervised, but disagree about when supervision should cease and about the extent of the additional time the children should spend with the father – where the father proposes an order for equal shared parental responsibility and the mother proposes that she have sole parental responsibility for the twelve year old. |
| Family Law Act 1975, ss.60CC, 61DA, 61DB, 65DAA |
| Applicant: | MR GALL |
| Respondent: | MS LESLIE |
| File Number: | NCC 1587 of 2008 |
| Judgment of: | Terry FM |
| Hearing dates: | 25 & 26 May 2009 |
| Date of Last Submission: | 26 May 2009 |
| Delivered at: | Alice Springs |
| Delivered on: | 17 June 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr Williamson |
| Solicitors for the Applicant: | Lambton Law |
| Counsel for the Respondent: | Mr Bates |
| Solicitors for the Respondent: | Peter Hamilton & Associates |
| Counsel for Independent Children’s Lawyer | Ms Moran |
| Solicitors for Independent Children’s Lawyer | Coast Law |
ORDERS
That the parents have equal shared parental responsibility for the children [X] born in 1997 and [Y] born in 2006.
That the children live with the mother.
That the children spend time with the father as agreed between the parties from time to time and failing agreement as follows:-
(a)commencing on the date of these orders and concluding 24 July 2009:-
(i)from 2.00pm on Saturday until 2.00pm on Sunday each alternate weekend, at the home of Mr G; and
(ii)from 5.30pm until 7.30pm each Wednesday, such time to be supervised by Mr G.
(b)commencing 25 July 2009 and concluding on 12 October 2009:-
(i)from 9.00am on Saturday until 5.00pm on Sunday each alternate weekend;
(ii)from 5.30pm until 7.30pm each Wednesday.
(c)commencing 13 October 2009 and concluding on 12 April 2010
(i)each alternate weekend during school terms from 9.00am on Saturday until 5.00pm on Sunday;
(ii)from after school each Wednesday during school terms until the commencement of school the following Thursday;
(iii)in the school holiday period following term 4 from 9.00am each alternate Thursday until 5.00pm each alternate Sunday commencing the second Thursday of the holidays;
(iv)in the school holiday period following term 1 2010 from 9.00am each Thursday until 5.00pm each Sunday.
(d)commencing 13 April 2010 and concluding 12 October 2010:
(i)each alternate weekend during school terms from after school on Friday until 5.00pm the following Sunday;
(ii)from after school each Wednesday during school terms until the commencement of school the following Thursday;
(iii)for the first half of the school holiday periods following terms 2 and 3.
(e)commencing 13 October 2010 and concluding 12 October 2011:-
(i)each alternate weekend during school terms from after school on Friday until the commencement of school the following Monday;
(ii)from after school each Wednesday during school terms until the commencement of school the following Thursday;
(iii)for the first half of school holiday periods following terms 1, 2 and 3 in even numbered years and for the second half of school holiday periods following terms 1, 2 and 3 in odd numbered years;
(iv)for a period of 3 weeks in the school holiday period following term 4 being the first week and the last two weeks of the holidays.
(f)commencing 13 October 2011:-
(i)each alternate weekend during school terms from after school on Friday until the commencement of school the following Monday;
(ii)from after school each Wednesday during school terms until the commencement of school the following Thursday;
(iii)for the first half of each school holiday period in even numbered years and for the second half of each school holiday period in odd numbered years.
(g)in the event that the children are not otherwise spending time with the father on Father’s Day from 5.00pm the Saturday immediately preceding Father’s Day until 5.00pm the following Sunday.
(h)from 2.00pm each Christmas Day until 11.00am on 27 December each year.
The time the children are to spend with the father is suspended as follows:-
(a)from 5.00pm the Saturday immediately preceding Mother’s Day until 5.00pm the following Sunday;
(b)from 9.00am Christmas Eve until 2.00pm Christmas Day each year.
On the children’s respective birthdays each year, the children shall spend time with the parent that they would not otherwise be staying with on that day from 3.30pm until 7.30pm.
[X] is to have all reasonable telephone communication with the father.
In the event that [Y] is not otherwise spending time with the father, [Y] is to have telephone communication with the father each Sunday between the hours of 5.30pm and 6.00pm with each call not to last more than 15 minutes.
That the appointment of the Independent Children’s Lawyer be continued for a period of thirteen months.
That for a period of twelve months the father forthwith upon being requested by the Independent Children’s Lawyer to do so, such request to be made no more frequently than once each month, submit at his own cost to urinalysis testing and provide a copy of the test results to the Independent Children’s Lawyer.
That the parties do all acts and execute all documents required to ensure the attendance of [X] for ongoing counselling and treatment with a counsellor or psychologist should further attendance on a counsellor be deemed to be appropriate for [X].
That the mother authorise the principal of the school attended by the children from time to time to provide the father upon issue copies of each school report, school newsletter, any other reports on progress at school and the behavioural issues and any notification to parents of events affecting the children and events to which parents are normally invited including parent teacher nights and sporting and social events.
That the mother authorise any health or welfare professional attended by the children to supply to the father copies of any reports affecting the health and welfare of the children and further, notify the father of the names and contact details of any health and welfare professional attended by the children.
That each party inform the other immediately by the best means available in the event of either child being admitted to hospital for emergency treatment, treated by an ambulance crew or being taken to a medical practitioner following any accident, injury or sudden illness.
That each party is restrained from denigrating the other to the children or to any other person in the presence or hearing of the children.
That the parties each inform the other within twenty four (24) hours of any change of residential address, landline telephone number and mobile telephone number and the particulars of such change.
That each party is restrained from using any illegal drugs during time spent with the children or within 12 hours prior to spending time with the children and is restrained from allowing other persons to use illegal drugs during time spent with the children.
That prior to making any application for a variation of these orders in respect to the children, the parties shall:
(a)attempt to negotiate and arrange mediation through an organisation recognised under the Family Law Act; or
(b)participate in family dispute resolution with a person authorised under the Family Law Act.
NOTATION:
That for the purpose of these orders, school holidays will be deemed to commence at 9.00am on the day following the last day of school and conclude at 5.00pm on the day before the commencement of school whether or not that day is a pupil-free day. After the conclusion of the school holiday period, the parent who spent time with the children during the first half of the school holiday will spend time with the children on the first weekend following the conclusion of school holidays.
That for the purposes of implementing these orders, the changeover for the children is to occur at the place the children may attend school from time to time. If the changeover does not or cannot occur at the place the children attend school, the changeover unless otherwise agreed between the parties is to occur at the McDonald’s Family Restaurant, [B].
IT IS NOTED that publication of this judgment under the pseudonym Gall & Leslie is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT NEWCASTLE |
NCC 1587 of 2008
| MR GALL |
Applicant
And
| MS LESLIE |
Respondent
REASONS FOR JUDGMENT
Introduction
Mr Gall and Ms Leslie have two children widely different in age: [X], 12 and [Y], 2½.
The parents had an on and off relationship over a period of fourteen years. [X] and [Y] have always lived with their mother.
The parents finally separated at Christmas 2006. Whether because of the father’s fitful interest, as the mother claimed, or because of the mother’s controlling nature, as the father claimed, the father spent only sporadic time with the children in 2007 and the early part of 2008.
In June 2008, the father filed an application for parenting orders. He proposed that the children live with each parent in a week about arrangement. In August 2008 the mother filed a response. She proposed that the children live with her and that the father spend time with the children supervised at a contact centre.
On 7 November 2008 interim consent orders were made which provided for the children to spend time with the father each Wednesday between 5.30pm and 7.30pm and each Sunday between 10.00am and 2.00pm, supervised by the father’s brother Mr G. The father was ordered to undergo fortnightly urinalysis to screen for the use of illegal drugs, and was ordered to attend drug and alcohol counselling and an anger management program. Each party was ordered to enrol in a Parenting after Separation course.
The father (with some isolated hitches) subsequently spent time with the children in accordance with these orders.
The father (after testing positive for cannabis use in the period to November 2008) produced a series of “clean” drug tests for the period 8 December 2008 to 11 May 2009. He attended drug and alcohol counselling and an anger management program. He commenced a Parenting after Separation course just prior to the hearing, after having been on a waiting list since last year.
The mother voluntarily submitted to four drug screening tests which all produced “clean” results, and commenced a Parenting after Separation course just prior to the hearing, after also having been on a waiting list since last year.
By the time of the hearing the parties’ applications had changed.
The father, having taken on board the recommendations of the Family Report Writer, abandoned his application for equal time. He proposed that the children live with the mother and spend time with him largely in accordance with the Family Report writer’s recommendations.
The mother agreed that the children’s time with the father should increase, although not to the extent the father wanted, and agreed to supervision ceasing, although not as quickly as the father wanted.
The issues in dispute between the parties at the hearing were principally as follows:
i)Supervision:
The father proposed that supervision by his brother cease as of 24 July 2009. The mother proposed that it cease at the end of November 2009.
ii)Midweek time:
The father proposed that his midweek time with the children continue and that after 24 July 2009 his midweek time become overnight time. The mother proposed that the midweek time cease altogether.
iii)Holiday time:
The father proposed that the children commence spending short periods of holiday time with him in the Term 3 holidays 2009, and that this gradually increase until by the time [Y] was five the children were spending half the school holidays with him. The mother proposed that holiday time commence in the 2009 Christmas school holidays, and that it be for a maximum of four days in the Term 1, 2 & 3 school holidays and for two four day periods in the Christmas school holidays, unless otherwise agreed between the parents.
iv)Parental responsibility:
The father sought an order for equal shared parental responsibility for both children. The mother proposed that the parties have equal shared parental responsibility for [Y], but that she have sole parental responsibility for [X].
The Evidence
The father relied on the following documents:-
a)his affidavits filed on 20 June 2008 and 7 May 2009;
b)the affidavit of his brother Mr G filed on 7 May 2009.
The mother relied on the following documents:-
a)her response filed on 11 August 2008;
b)her affidavits filed on 11 August 2008 and 11 May 2009;
c)the affidavit of her partner Mr K filed on 11 May 2009.
A Family Report was prepared by Ms Dinah Taylor.
All of the witnesses were cross-examined.
The father was a calm and responsive witness. He was refreshingly honest in the evidence he gave about the incident at the mother’s home on Australia Day 2008, admitting that it had crossed his mind to punch the mother’s partner Mr K and admitting that he had not considered at the time how his behaviour might affect the children, or the mother. He was honest about his behaviour during an incident in December 2008 when he became impatient about [Y] being off-colour and criticised the mother in the children’s presence, distressing [X].
The mother was a calm and usually responsive witness. It was clear that she genuinely struggled to reconcile an intellectual acceptance of the importance of the children knowing their father with her fears about whether the father could be trusted to properly care for the children. In regard to the regime proposed by Ms Taylor the mother said “I can see the fairness, but how does it protect the children if
Mr Gall relapses?”The mother showed a refreshing willingness to shift her position. In her 11 May 2009 affidavit the mother said that she could not communicate with the father and was fearful of him and felt intimidated by him. In oral evidence she said that she had already learned strategies at the parenting course which had just commenced which caused her to be hopeful that in the future she and the father might be able to have brief conversations about the children from time to time.
I did not consider either the mother or father a more reliable witness than the other. As a result there are some disputes about historical events which I am simply unable to resolve. An example is the dispute about whether the father put amphetamines in the mother’s tea in 1997. Another example is the dispute about whether the father was displeased that [X] was a girl and therefore did not commit to her after her birth. In any event in the context of this case resolving such disputes would not help me to decide on appropriate future parenting orders for [X] and [Y].
The father’s brother Mr G was also a calm and responsive witness. He has been supervising the visits between the father and the children since the interim orders were made on 7 November 2008. He was frank in describing the incident in December 2008 when the father became impatient with [Y] and criticised the mother in the children’s presence. Mr G did not try to shield the father by denying or downplaying what happened. As a result I place weight on Mr G’s evidence, including his evidence about [X] and [Y]’s level of comfort during their visits with their father.
The mother’s partner Mr K presented as a quiet and unassuming man. He is protective of the mother but not hostile to the father.
The Family Report writer Ms Taylor was a most impressive witness. Her report was insightful and the reasoning behind her recommendations was clear. Prior to the commencement of the hearing, Ms Taylor was asked to read some documents that had been produced on subpoena in regard to the mother. In oral evidence
Ms Taylor said that the information in these documents supplied the “missing piece of the jigsaw” and explained aspects of the mother’s presentation at the report interviews which had puzzled and concerned her. Nothing in the documents however caused Ms Taylor to reconsider her recommendations.
Background
The mother is 39 and the father 34. They met in 1992, when they were 18 and 21 respectively.
Both parents brought a troubled past history into their relationship. The mother had been sexually assaulted at the age of fifteen by a music teacher at her school, an incident which still reverberates in the mother’s life. The father’s mother died when he was young and his father was an alcoholic. Both the mother and father were using cannabis prior to meeting. The father said that he commenced using cannabis when he was twelve.
After the relationship commenced the parties continued to use cannabis, and both began using amphetamines.
As far as I can gather the parties ceased living together in late 1995 but their relationship continued. In May 1996 the mother was admitted to [L] Hospital where she underwent detoxification and counselling. During her admission the mother discovered that she was pregnant with [X].
The parties lived together again briefly around the time of [X]’s birth but separated in about March 1997. Following this separation the father spent limited time with [X].
In 1999 the father moved to Sydney and the mother remained in Newcastle with [X]. The father’s time with [X] continued to be limited and sporadic.
In November 2002 the father filed a court application seeking orders concerning his time with [X]. The parties reached an agreement that the father would spend time with [X] on alternate weekends and during school holidays and the father discontinued his application. The father did spend some time with [X] in accordance with the agreement.
In mid-2004 the parties reconciled. The father continued to live and work in Sydney and the mother continued to live in Newcastle with [X], but the father travelled to Newcastle on weekends to spend time with the mother and [X].
The relationship after this reconciliation was marked by conflict and some drug use. The parties second child, [Y], was born in October 2006. The mother and father separated again at Christmas 2006, this time finally.
After this final separation the father spent time with the children by agreement with the mother. It was the father’s case that the mother made it difficult for him to see the children regularly. It was the mother’s case that the father did not make a consistent effort to spend time with the children.
The father spent time with the children for a few hours on Australia Day 2008. When he returned the children to the mother’s home he found himself face to face for the first time with the mother’s new partner Mr K. A tense stand off occurred during which the father initially refused to allow the mother to take [Y]. The father did eventually hand [Y] over to the mother and did leave but relations between the parties were particularly strained after this incident.
In April 2008 the mother applied for an apprehended violence order against the father and an interim order was made. In June 2008, the father filed an application for parenting orders.
On 7 November 2008 interim consent orders were made which provided for the father to spend time with the children each Wednesday evening for two hours and each Sunday for four hours, supervised by the father’s brother Mr G. This arrangement appears on the whole to have worked reasonably well and was still in place at the commencement of the hearing.
Drug use by the parties
The father admitted a long history of cannabis use, dating back to when he was twelve, and a history of amphetamine use which commenced when he was about eighteen.
It was the father’s case that after his separation from the mother in 1997 his amphetamine use became infrequent. He claimed that between 2004 and 2006 the mother was the primary instigator of continued amphetamine use by the parties. The father said that he had last used amphetamines in early 2007.
The father submitted to drug screening tests in September and October 2008 and tested positive for the presence of cannabinoids but negative for the presence of any other drugs.
The 7 November 2008 orders required the father to submit to fortnightly drug tests. His test results for 10 November 2008 and
24 November 2008were also positive for cannabinoids but all his results between 8 December 2008 and 11 May 2009 were negative for the presence of any illegal drugs, including cannabis.
The 7 November 2008 orders required the father to attend drug and alcohol counselling. On 6 December 2008 the father consulted the Alcohol and Drug Unit at [C] Hospital. He attended sessions on
6 December 2008, 17 January 2009 and 19 February 2009. He produced a letter from the Alcohol & Drug Unit which commented favourably on his progress and expressed optimism about the father’s ability to remain drug free.[1]
[1] Father’s affidavit Exhibit “E”
The father appears to have been reasonably frank with the Alcohol and Drug Unit about his history of drug use and he is strongly motivated to remain drug free so that he can continue to spend time his children.
The mother said that she ceased using drugs, including amphetamines, in 1996 when she discovered that she was pregnant with [X].
The mother said that she remained drug free until 2004 when she and the father got together again and she (reluctantly) used amphetamines with the father on about three occasions. The mother was emphatic that she did not use amphetamines when she was pregnant with [Y] and had not used them since [Y] was born.
The father maintained that the mother continued to use amphetamines after 1996 and that on occasions she requested him to supply her with amphetamines. He did not agree that the mother’s amphetamine use between 2004 and 2006 was restricted to three occasions.
On the state of the evidence I am unable to be satisfied that the mother did continue to use amphetamines between 1996 and 2004. The mother admitted using amphetamines with the father in 2004-5.
I am unable to make findings about whether this was on three occasions or happened more frequently.
There was a ring of truth to the mother’s evidence that she did not use amphetamines while pregnant with [Y]. There was no objective evidence which suggested that the mother might still be using illegal drugs. The mother voluntarily submitted to four drug tests between
5 September 2008and 16 October 2008 and tested negative for the presence of illegal drugs on each occasion.
Ms Taylor observed as follows however about the situation of both parties:
“Drug addiction is a chronic, relapsing condition and as such both the mother and the father are at risk of relapse over their lifetime. The father is obviously at higher risk as he apparently ceased using only four months ago whereas the mother claims to have been abstinent since 2006. It is important that the father’s abstinence is monitored regularly over at least the next twelve months to ensure he does not relapse. It may be that the mother needs to undergo three months of urine testing to confirm her alleged abstinence.”[2]
[2] Family Report paragraph 62
The father is willing to consent to an order that he continue to submit to random urinalysis. The mother requested that this be for a period of two years. The father said that he would submit to the testing “for as long as needed.”
The mother’s mental health
The father raised a concern about the mother’s mental health.
In May 1996 the mother was admitted to [L] Hospital. She was assisted to cease using drugs and was diagnosed with depression and prescribed anti-depressants. The mother ceased taking the anti-depressants after a short period. She commenced seeing a psychologist, Ms H and continued to see Ms H for counselling for a number of years.
The mother has not felt the need to consult Ms H for some time. She has not taken anti-depressants since 1996.
There was nothing to suggest that the mother now has mental health issues which affect her ability to meet the children’s needs. [X] suffers from anxiety which has required a referral to a psychologist, but there was nothing to suggest that the mother’s parenting or the mother’s own past history were the sole or predominant cause of [X]’s difficulties.
The mother’s mental health is relevant for two other reasons however. Firstly, when taken together with the mother’s experience of the father as a person who has used drugs and has a quick temper, it helps to explain the mother’s difficulty in encouraging the relationship between the children and their father between 2007 and the present time.
Secondly, Ms Taylor conceded that given the mother’s own history she might genuinely find it harder than average to trust the father, to accept that he had changed and to accept the children having unsupervised time with the father. Ms Taylor said that if the mother became “stressed, frightened, anxious or worried” once longer and unsupervised time commenced this would not be good for the children.
It was Ms Taylor’s opinion however that the solution to the problem of the mother becoming anxious and worried about the children being with their father was not to restrict the father’s time or to unduly continue supervision, but to encourage the mother to return to counselling so that she would be supported. Ms Taylor said that Ms H would be a good choice for the mother, as she already knew the mother and the mother would not have to go over old ground re-telling her history.
In oral evidence the mother said that she was willing to re-engage with Ms H but only if the other coping strategies she had been taught failed to help her.
The parties current circumstances
The father lives in a rented three bedroom home in [B]. The children have visited this home on many occasions and Mr G confirmed that the children were comfortable there. The father has prepared bedrooms for the children in preparation for the commencement of overnight time.
The father is a self-employed [tradesman]. He said that he could be flexible with his working arrangements. There was no evidence that his working arrangements were likely to conflict with the proposals he put forward about his time with the children.
The father is not currently in a relationship.
The mother lives with the children in a home she owns in [W]. [X] attends [S] High School. She is in Year 7 and is making good progress at school.
The mother is a retail sales assistant employed by [T]. [Y] attends day care when the mother is at work.
The mother has been in a relationship with Mr K, who also works for [T], for about two years. Mr K is a regular visitor to the mother’s home but he and the mother do not currently live together.
[X] and [Y]’s best interests
In deciding whether to make a particular parenting order I must regard [X] and [Y]’s best interests as the paramount consideration. Sections 60CC(2) and (3) of the Family Law Act set out the matters which I must consider in determining the children’s best interests.
The primary considerations in s.60CC(2) are as follows:
“a)the benefit to the children of having a meaningful relationship with both of the children’s parents; and
b)the need to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.”
[X] and [Y] will benefit from having a meaningful relationship with both of their parents.
The children will continue to live with their mother and will have ample opportunity to maintain their existing meaningful relationship with her.
The orders proposed by either parent would, if made, give the children regular time with their father and would thus create the opportunity for the children to have a meaningful relationship with the father. The orders the mother sought would give the father less time and less scope to be involved with the children on school nights or during school holidays than those proposed by the father.
The children are not likely to be subjected to or exposed to abuse, neglect or family violence in the care of the mother.
Unless the father relapses into illegal drug use, I do not consider that the children are likely to be subjected to or exposed to abuse neglect or family violence in the care of the father.
Turning to the additional considerations in s.60CC(3), I must first consider any views expressed by the children, and any factors (such as the children’s maturity and level of understanding) that the court thinks are relevant to the weight it should give to the children’s views.
[Y] is too young to express a view about parenting arrangements.
As to [X]’s views Ms Taylor said as follows:
“[X]’s views in regard to future parenting arrangements were sought in respect of her age, intellect and maturity. She was able to state her clear agreement when a possible future proposal was described to her by this writer. It included continuing the day only supervised time until mid May…then move to add an overnight each alternate weekend…..”[3]
[3] Family Report paragraph 56
The mother’s counsel submitted that the above paragraph from the Family Report could not be relied on as evidence that [X] approved a continuation of the mid-week time, as it was not clear that Ms Taylor had specifically asked [X] about this issue. It was the mother’s case that [X] was unsettled by the mid-week time and had repeatedly told her mother that she did not like it and did not want to go.
This issue might have been clarified if Ms Taylor had been asked about it in cross-examination but she was not.
The above paragraph indicates that Ms Taylor sought [X]’s views about a continuation of the existing arrangements and the existing arrangements include mid-week time. [X] was forthright in giving her views about various matters to Ms Taylor. If [X] had been really opposed to a continuation of mid-week time it would in my view have emerged during the report interviews.
While it is quite possible that [X] does grumble to her mother on occasions about the Wednesday nights, I do not accept on the evidence that [X] is opposed to the midweek time continuing.
I must consider the nature of the relationship of the children with:
a)each of the children’s parents; and
b)other persons (including grandparents or other relatives of the children).
I am satisfied that the children have a good and close relationship with their mother. The children also have a good relationship with
Mr K.
I am satisfied that the children have a good relationship with their father.
[X] has spent time with her father on occasions throughout her life and has a comfortable relationship with him.
[Y]’s regular and frequent time with the father only commenced in November 2008. Ms Taylor observed [Y] and the father together during the report interviews in April 2009 and said as follows:
“Upon separation from his mother and Mr K, to this writer, [Y] became age appropriately distressed. When he was taken to see his father in the waiting room, he stopped crying immediately, cried out ‘dad’ gave a big smile and almost leapt out of this writer’s arms. He ran straight to his father and sought a cuddle and there was no further distress observed. It is clear that [Y] has formed a healthy, age appropriate, ‘alternate/secondary’ attachment to his father.”[4]
[4] Family Report paragraph 57
[X] and [Y] also have a comfortable relationship with their uncle Mr G.
I must consider the willingness and ability of each of the children’s parents to facilitate and encourage a close and continuing relationship between the children and the other parent.
The father denigrated the mother during the incident in December 2008, but this was the result of him giving way to a moment of frustration. The father acknowledged that the mother was “an excellent mother”. I am satisfied that the father has the willingness and ability to facilitate and encourage a close and continuing relationship between the children and their mother.
The mother distrusts the father, is worried about the children when they are with him and fears that he will relapse into drug use. She paid lip service to the importance of the children having a close and continuing relationship with their father, but I am not convinced that her heart was in it.
The mother’s reservations about the father are understandable, given the father’s history. I accept the mother’s evidence that she wants the arrangements for the father to spend time with the children to work. She has demonstrated an ability to comply with court orders. Her attitude to the father may well change if the father’s time with the children is uneventful over a sufficiently lengthy period of time.
I must consider the likely effect of any change in the children’s circumstances, including the likely effect of separation of the children from:
a)either of their parents; or
b)any other child, or other person (including any grandparent or other relative of the children) with whom the child have been living.
The changes the children face are the introduction of more extensive time including overnight time with their father, the introduction of holiday time with their father and an end to supervision.
The children would also face a change if the court acceded to the mother’s proposal and ceased the children’s mid-week time with their father.
The children have a good relationship with their father, and the increases in time and introduction of overnight time recommended by Ms Taylor and largely adopted by the father are age appropriate for [Y]. [X] informed Ms Taylor that she was comfortable with the kind of arrangement that Ms Taylor had in mind. I am satisfied that the children would cope with an extension of their time with their father along the lines proposed by Ms Taylor.
The parties agreed that the father should commence spending block holiday time with the children, but disagreed about the extent of the time and about when it should be introduced.
The father was willing for this time to be a few days at first as recommended by Ms Taylor, culminating in half school holidays by the time [Y] was 5.
School holiday time with the father has many potential benefits for the children. It will allow the children to do holiday activities with the father and perhaps go away with him for a few days longer. It will also result in the parties sharing the responsibility for providing holiday care for the children, which can be a burden for working parents.
The children have a good relationship with their father. There was no evidence which suggested that the children would not enjoy and benefit from holiday time with their father.
The mother proposed that the holiday time always be restricted to four days unless otherwise agreed between the parties. The mother’s counsel in submissions did not point to any evidence which would support such a restrictive provision, although the mother’s proposal is consistent with her concerns about whether the father has truly overcome his problem with illegal drugs.
The mother would prefer that the midweek time cease. It was the mother’s case that both children were unsettled by the mid-week time. The mother said that it was difficult to settle [Y] in the evening when he returned to her from his father’s and that [Y] was tired the next day. She also said that [X] liked to come home from school and do her homework first and then relax before going to bed and that she could not do that on Wednesdays.
To an extent these problems will be overcome if the mid-week time becomes overnight time. However it was also the mother’s case that [X] objected to the mid-week time continuing. It was the mother’s case that her evidence about [X]’s views should be accepted and given weight. For reasons given earlier, I am not persuaded that there is evidence that [X]’s expressing a definite objection to the continuation of the mid-week time.
The mother said that [X] was a child who took time to adapt to changes. She said that it had taken time for [X] to adapt to the mother’s recent change of residence. An implication in the mother’s evidence was that [X] had not adapted to the change in her routine which spending Wednesday evenings with the father each week entailed.
The mother is a caring parent and I accept her evidence about [X]’s personality and inclinations. However this very fact makes it undesirable to now change the arrangements for the Wednesday time with the father. It has been in place for more than six months, [X] made no complaint about it to Ms Taylor, and to now change the arrangements would result in yet another change which [X] would have to get used to.
Ceasing the mid-week time will restrict the children’s opportunities to spend a variety of time with the father. He will not have the opportunity to interact with them on a school night which is followed by a school morning. Ceasing the midweek time would also result in a long gap between visits, which is not ideal for a child of [Y]’s age. In my view ending the midweek time is more likely to be detrimental than beneficial for the children.
An end to supervision would be detrimental to the children if it exposed them to drug use, deficient parenting skills or outbursts of temper by the father. Absent this issue however, the end of supervision will allow for the development of more natural parent child interaction between [X] and [Y] and the father and will allow the father to develop and learn to trust in his own instincts and abilities as a parent.
I must consider the practical difficulty and expense of the children spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the children’s right to maintain personal relations and direct contact with a parent on a regular basis.
The parents live within reasonable proximity of each other and of [X]’s school and this is not a relevant consideration in these proceedings.
I must consider the capacity of each of the parents to provide for the needs of the children, including their emotional and intellectual needs.
I am satisfied that the mother has the capacity to provide for the children’s day-to-day and their intellectual needs.
When she described her attendance at the first session of the parenting course the mother demonstrated that she has the willingness and ability to learn new ways of dealing with the father and she is also willing to seek help from a counsellor or psychologist if she needs assistance to deal with any orders. I consider that the mother has the capacity to meet the children’s emotional needs.
The mother had three particular concerns about the father’s parenting capacity. One was that the father might relapse and return to using illegal drugs, exposing the children to either inadequate parenting or neglect if they were in his care at or around that time or alternatively resulting in the father’s time with the children ceasing or becoming irregular. The second was that the father lacked adequate parenting skills, the third that the father was quick to anger and that the children might be exposed to his anger and impatience.
As to the drug use, the possibility of relapse cannot be ruled out.
Ms Taylor observed that:
“A factor identified which may impinge on the children’s well being was identified as if the father relapses and recommences using marijuana and/or amphetamines the children will be exposed to his parenting either affected by drugs or by the withdrawal in between intoxications and the resultant anger management problems.”[5]
[5] Family Report paragraph 25
Supervision is a way of ensuring that the children are not exposed to the father if he is under the influence of drugs, but there are practical difficulties with long term supervision. In addition if the father is always supervised he will never fully develop his own parenting skills.
An order for random drug testing would go some way to dealing with the concern that the father might relapse. It would result in fairly quick detection if there was a problem. In addition [X] is twelve years old, and is highly likely to reveal all to her mother if she observes any signs of the father’s relapsing in regard to drug use.
As to the father’s lack of experience, the father lived in the same home as [X] and the mother for periods of [X]’s childhood. Mr G commented very positively on the father’s ability to meet the day-to-day needs of the children between November 2008 and May 2009, and finally, parents frequently only become proficient in this caring when given the opportunity and the latitude to make mistakes and learn from their mistakes.
The father presents as an intelligent and articulate man. Provided that he is not using drugs, there is no reason to suppose that he does not have the same capacity as most other adults to competently take on daily tasks associated with parenting. A comforting factor is that the father has a good relationship with his brother Mr G, a competent and experienced parent of three young children. I feel confident that the father would turn to Mr G for advice and assistance about parenting matters if he felt that he needed it.
Another protection for the children is that [X] is highly likely to speak up if she perceives any deficiencies in the father’s parenting skills.
As to the father’s quick temper the father has attended an anger management course and he demonstrated during oral evidence that he had learned from the course.
When the father became impatient with [Y] in December 2008 when [Y] was ill, both [X] and Mr G challenged the father about the way he was behaving and the father was able to accept the criticism and amend his behaviour.
There is reason to be optimistic that the father will make every effort to keep his temper under control in the future when the children are with him. There is certainly nothing to suggest that the father is likely to lose his temper with the children to the point of the children being at risk of physical harm. Even during the confrontation with Mr K in January 2008, prior to the father undertaking the anger management course, he was able to keep his behaviour sufficiently under control so that the situation did not degenerate into one involving physical conflict.
As with the father’s drug use, [X] is likely to speak up if she sees her father behaving badly, and to let her mother know what has happened. This could jeopardise the father’s hard won time with the children and the knowledge of this should also act as a powerful brake on the father.
I must consider the maturity, sex, lifestyle and background (including lifestyle, culture, and traditions) of the children and of either of the children’s parents and any other characteristics of the children that the court thinks are relevant.
[X] and [Y] are considerably different in age. [X] is 12 and has commenced high school. In the not too distant future [X]’s focus will become more and more her peer group rather than her parents, and strictly regimented parenting orders may cease to suit her.
The fact that this may happen in the future is not however a justification for ordering less rather than more time at present. If [X] becomes dissatisfied with a fixed regime with her father, the parents will have to deal with that when it arises.
[X] showed signs during 2008 of suffering from anxiety. She commenced counselling with a psychologist, Ms S, in November 2008 and the sessions continued until February 2009.
During the report interviews on 1 April 2009 Ms Taylor observed that [X] suffered from a marked facial tic and commented that “This form of facial tic is most commonly seen in children who suffer from some form of anxiety.”[6]
[6] Family Report paragraph 50.
Ms Taylor did not suggest that [X]’s presentation had a bearing on the issue of the amount of time [X] should spend with the father or on the issue of the extent to which supervision should continue. She did however strongly recommended that [X] “recommence therapy with her treating psychologist until such time as the psychologist feels her anxiety levels significantly lessened…”[7] The parents both supported [X] recommencing therapy.
[7] Family Report paragraph 76.
[Y] on the other hand is only 2½ and will do as he is told in regard to parenting arrangements for many years to come. Because [Y] is so young, he cannot speak up articulately if things go wrong with his parenting. This is a reason for proceeding somewhat cautiously with the increases in the father’s time with the children.
I must consider the attitude of each parent to the duties and responsibilities of parenthood.
It was a theme of the mother’s case that the father had been sporadic in showing any interest in the children until fairly recently.
It was a theme of the father’s case that he had spent as much time with the children as he was allowed to and that the mother had been difficult and obstructive about allowing him to spend time with the children.
In my view the difficulties which occurred in 2007 and 2008 were most likely due to a combination of factors rather than simply due to one parent being uninterested or difficult as the case may be. The mother, as a result of her own past history and her own experiences of the father, has been protective of the children in the past. It is also possible that the father’s drug use, together with his residence in Sydney, resulted in him not requesting time with the children as frequently as he might have.
I do not consider that it would be at all helpful to now try to apportion blame for what happened in the past. Much has changed since the father filed his application in June 2008, and it is important to look to the future.
The mother was highly critical of the father for failing to contribute financially to the children in the past. However the mother has not actively sought child support through the child support agency in the past either, and in recent times when the father through his brother offered her small sums of money, the mother refused them.
The issues I have to decide are the extent of the time the father should have with the children in the future and the extent to which supervision should continue. Apportioning blame for past non-payment/non-receipt of child support would not assist me to resolve those issues. There is nothing to prevent the mother from now applying for a child support assessment and indeed she ought to do so.
I must consider any family violence involving the children or a member of the children’s family.
It was a theme of the mother’s case that throughout her relationship the father was a controlling and aggressive man who frequently physically and verbally abused her. In cross examination it was suggested to the father that he had threatened the mother with firearms.
It was a theme of the father’s case that he was not a perpetrator of violence, rather, that he and the mother had furious arguments in which they each gave as good as they got. He vehemently denied ever threatening the mother with firearms.
There was ample evidence that the father has in the past been a quick tempered man. He frankly admitted to feeling intensely angry when he unexpectedly came face to face with Mr K on Australia Day 2008, and frankly admitted that he momentarily contemplated assaulting
Mr K.
There was also evidence that the mother is capable of reacting violently on occasions. She agreed that she and the father had a violent argument at Christmas 2006, commenting that it was “an awful display between the pair of us” and that she was “ashamed that that’s [X]’s last memory.”
[X] informed Ms Taylor that she recalled her mother and father fighting and that “they were both as bad as each other.”[8]
[8] Family Report paragraph 50
I cannot make findings on the state of the evidence about the extent of family violence during the relationship or whether one party was more to blame than the other.
There seems little likelihood at present of any further confrontation between the parents, even if they see each other at a place such as McDonalds for handover. The father has attended and appears to have learned from an anger management course and he has a great deal to lose if he fails to control his temper.
There is nothing to suggest that the children are likely to be exposed to or be the subject of violence in the father’s care in the future.
There are no family violence orders in place. The mother applied for an order against the father on 13 May 2008. The application appears to have been based principally on the incident at the mother’s home on Australia Day 2008, together with allegations about violence in the parties post relationship. An interim order was subsequently made by consent and without admissions. It expired in January 2009.
I must consider whether it is preferable to make the order which is least likely to lead to the institution of further proceedings.
It is often difficult to predict which orders are least likely to lead to further proceedings.
There is always the potential for this matter to come back to court if the father relapses into drug use, but only the father, and not any order I make, can prevent that from happening.
If I make orders which are too restrictive about the father spending holiday time with the children, he may well return to court when [Y] is a few years older seeking more extensive holiday time.
I must consider any other fact or circumstance which the court thinks is relevant.
The issue of whether supervision should end in late July 2009 or continue until the end of November 2009 was a significant issue in dispute between the parties.
The father’s time with the children is supervised by his brother Mr G.
While Mr G has faithfully carried out his role as supervisor for the last six months, he has three young children of his own, works full time and is studying part time. He said that in principal he was willing to continue to assist the father by acting as a supervisor, but that he would need to consult his wife if that was likely to involve a prolonged and extensive commitment.
Ms Taylor did not consider that supervision beyond the end of July 2009 was necessary, indeed she said that she proposed that supervision continue until then simply to provide some comfort to the mother.
It would be feasible for Mr G to continue the supervision until then and that should not impose an undue burden on him.
Mr G was aware of the proposal that the first periods of overnight time between the father and the children should occur at Mr G’s home. He said that with some organisation bedding could be provided for the children at his home, and appeared willing for this time to occur as envisaged by Ms Taylor.
The mother proposed that the children’s time with the father, including the overnight time on alternate weekends, continue to be supervised by Mr G until the end of November 2009.
On the mother’s proposal the time on Wednesdays would cease, and this would relieve Mr G of part of his obligation. However a requirement that Mr G supervise the father’s time for the next six months would be a considerable impost on Mr G. Not only would it be a commitment of his time for potentially the whole of each alternate weekend, but an order for supervision would require him to be personally present with the father and the children for the entire period.
The fact that this is a considerable impost on Mr G could result in some of the time not occurring.
The mother’s counsel submitted that regardless of this difficulty, it was preferable to continue the supervision until the end of November because that would give the mother peace of mind, and it was important that she as the primary carer be as comfortable and happy about the children’s circumstances as possible.
Ms Taylor in oral evidence said that the move to unsupervised time would be difficult for the mother whenever it occurred, and indeed that she might never feel comfortable with it. Ms Taylor said that the solution to the problem of the mother feeling anxious once supervision ceased was not to require that supervision continue for longer, but to encourage the mother to seek professional support, perhaps from Ms H if she became unduly anxious about the new arrangements. I place weight on Ms Taylor’s opinion.
The mother agreed that if her own coping strategies did not help her she would consult Ms H.
Parental responsibility
On 17 November 2008 an interim order for equal shared parental responsibility was made by consent. Pursuant to section 61DB of the Family Law Act, I am required, when making a final order, to disregard the allocation of parental responsibility in the interim order.
Pursuant to s.61DA I am required to apply a presumption that it is in the children’s best interests that their parents have equal shared parental responsibility for them absent a finding that there are reasonable grounds to believe that one of the parents has engaged in abuse of the children or family violence.
The presumption does not apply if the court considers that it would not be in the best interests of the children for it to apply.
In my view there are reasonable grounds for believing that some family violence did occur between the parents during their relationship, even if I cannot ascribe blame solely to one party or make findings about any specific incidents. However even if family violence did occur, it is still open to me to make an order for equal shared parental responsibility, if I consider that to be in the children’s best interests.
The father sought an order for equal shared parental responsibility in respect of both children. The mother agreed during the hearing that there should be an order for equal shared parental responsibility in respect of [Y], but said that she should have sole parental responsibility for [X].
The mother argued that now that a high school had been chosen, all the major decisions had been made for [X]. She further said that weight should be given to the fact that she had always made the decisions for [X]. By implication it was her case that if she had been the de facto sole decision maker for [X] for twelve years, why change it now?
I have some sympathy with the mother’s position, but in my view it does not make good sense to have one order about parental responsibility for [Y] and a different order for [X].
It is not correct to say that all the decisions about major issues have been made for [X]. Change of surname, relocation or international travel are all major issues and these issues could still arise, as could other unforseen major issues such as a decision about medical treatment.
The father will from this point on be seeing both children regularly, with have knowledge about them which will assist him to make good decisions for them.
If an order for equal shared parental responsibility is made the parents will need to consult if decisions are required about major issues.
The parent’s ability to communicate has not been good in the past, but they have managed some effective communication. The father gave evidence of the parties successfully communicating by email about the issue of whether [X] should be given a laptop.
It was clear when the parties gave evidence that they are each committed to improving their communication. Each party had attended the first session of a Parenting after Separation course. The father said that he was hopeful from what he had learned that he would be able to establish a business relationship with the mother. The mother said that she hoped that she and the father would be able to talk briefly at handovers about matters relevant to the children.
Dispute resolution services are also available to assist the parents if a major issue arises and they have difficulties consulting with each other about it.
In my view it is in the best interests of [X] and [Y] that their parents have equal shared parental responsibility for them.
Conclusion
As I intend to make an order for equal shared parental responsibility I am required by s.65 DAA of the Family Law Act to consider whether making an order for equal time or substantial and significant time would be in the children’s best interests and reasonably practicable.
Ms Taylor did not consider that an order for equal time would be in the children’s best interests particularly having regard to [Y]’s age. The father to his credit accepted Ms Taylor’s recommendations and did not press for equal time.
The orders sought by the father would come within the definition of substantial and significant time. Substantial and significant time is defined in s.65 DAA(3) of the Family Law Act as follows:-
(3)For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
a. the time the child spends with the parent includes both:
i.days that fall on weekends and holidays; and
ii.days that do not fall on weekends or holidays and
b. the time the child spends with the parent allows the parent to be involved in:
i.the child’s daily routine; and
ii.occasions and events that are of particular significance to the child; and
c. the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
The orders the mother proposed namely alternate weekends, no midweek time and very limited school holiday time, do not in my view come within the definition.
Ms Taylor supported a regime which was close to although not identical with that proposed by the father. While the father wanted to move quickly to overnight midweek time, Ms Taylor proposed that the overnights on Wednesdays not commence until [Y] turned three in October, and that school holiday time also not commence until after [Y] turned three, in other words effectively in the Christmas school holidays 2009.
Ms Taylor is an experienced family report writer and social worker, she is objective and is not swayed by emotions as the parties are, and in my view considerable weight should be given to Ms Taylor’s opinion about the regime which would best suit the children. The regime met with [X]’s approval and is consistent with [Y]’s needs.
I do not accept that [X] is expressing opposition to mid-week time. The difficulties with the children settling on Wednesday will be overcome once the time becomes overnight. It is understandable that an order for supervision was made in November 2008, as the father had only just ceased using cannabis and [Y] had only just turned two.
In my view there is no logic in restricting the father’s holiday time with the children forever more to a maximum of four days in the three shorter holidays and two four day periods.
The father has a great deal to offer his children. He is keenly interested in his children and he wants to be involved in a meaningful way in their upbringing. Through him the children can forge a connection with their paternal extended family. In my view absent the father returning to the use of illegal drugs, it is in the children’s best interests that they spend substantial and significant time with him. There are no practical issues which would stand in the way of the kind of arrangement the father proposed.
It would be highly regrettable for the children if the father relapsed into illegal drug use. However limiting the father’s time with the children as the mother proposed will not create any safeguard against the father relapsing into drug use. If the father relapses and is not able to take a prominent role in the children’s care in the future, this will be extremely sad for the children. Limiting the father’s time with the children now however will not make this outcome if it happens any easier for the children to bear.
The mother was concerned that as [X] grew older, and became more involved with her peer group, that [X] herself may find the orders unsatisfactory. This could well be true. If that happens then the parents will need to deal with this. It is not a reason to make more restrictive orders at the present time.
The father proposed that supervision end on 24 July 2009, a proposal reasonably consistent with Ms Taylor’s recommendations. The mother’s counsel submitted that as the mother had genuine concerns about the children spending unsupervised time with the father the court should order that supervision continue until November because giving the mother what she sought would give the mother some peace of mind and that in turn would be better for the children.
It is understandable that an order for supervision was made in November 2008 as the father had only just ceased using cannabis and [Y] had only just turned two.
The father has now produced clean urinalysis tests for six months, and he has seen the children regularly over that period. He is familiar with the children and they are comfortable with him. He is on good terms with his brother Mr G, who is willing and able to provide him with advice about caring for the children.
An order that random urinalysis continue provides some protection against the father relapsing undetected. In addition [X] is twelve, and is likely to speak out if she observes anything unsatisfactory, either in terms of the father’s parenting or his drug use.
Ms Taylor was of the view that there was no necessity for supervision to continue in order to protect the children. Ms Taylor did however recommend that the first four overnight visits should occur at the home of Mr G (which is not necessarily the same as requiring supervision) in order to provide some comfort to the mother. She recommended that the Wednesday evening time continue to be supervised by Mr G on the next four occasions.
Ms Taylor was an impressive witness who was fully alive to the history of this matter and to the history of the father’s drug use. I place weight on her opinion that after the first four visits, that supervision should cease.
I therefore intend to make orders concerning supervision which are largely in line with the recommendations by Ms Taylor. However as some further supervised time has passed between the hearing and delivery of the judgment it is in my view reasonable that supervision cease on 24 July 2009 notwithstanding that this will result in fewer supervised overnight visits on the weekends than Ms Taylor proposed before unsupervised overnight visits commence.
The parties had different proposals about how long the overnight weekend time should be, once it commenced, with the mother proposing that the time be from 2.00pm Saturday until 2.00pm Sunday during the first phase and the father proposing 9.00am Saturday until 5.00pm Sunday. The shorter period during the first phase represents a reasonable staged progression for [Y] from the current few hours on Sunday and will impose the least burden on
Mr G. I intend to make the order for time during the first phase in accordance with the mother’s proposal.
The father proposed that once he commenced having overnight time with the children that changeovers occur at school or at McDonald’s [B] if changeover occurred on a non-school day. The mother proposed that all changeovers occur at McDonalds [B]. In my view if changeovers occur on a school day then it is appropriate for the father to collect the children from school and return them to school, and I intend to make orders to that effect.
The Independent Children’s Lawyer is willing to continue her involvement in the matter and to take on the role of requesting the father to submit to monthly drug tests. Mrs Taylor recommended that the father be required to provide drug tests for at least twelve months. The mother suggested two years but there was no particular evidence to suggest that requiring the tests for such a lengthy period was required. I intend to order that the father submit to the test for twelve months. On the state of the evidence I do not consider that it is necessary to require the mother to submit to random drug screening.
For all the above reasons the orders of the court will be set out at the beginning of the judgment.
I certify that the preceding one hundred and ninety five (195) paragraphs are a true copy of the reasons for judgment of Terry FM
Associate: Rachel Hodgson
Date: 17 June 2009
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